Citation Nr: 1311343 Decision Date: 04/05/13 Archive Date: 04/19/13 DOCKET NO. 10-47 925 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Whether new and material evidence has been received with respect to a service connection claim for a right shoulder disorder. 2. Entitlement to service connection for a right shoulder or arm disorder, to include as secondary to the service-connected left shoulder disability. 3. Entitlement to service connection for a neck disorder, to include as secondary to the service-connected left shoulder disability. 4. Entitlement to a rating in excess of 20 percent for the service-connected left shoulder disability. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1977 to September 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. No hearing was requested. With respect to the right shoulder or arm, the agency of original jurisdiction (AOJ) adjudicated the issue on appeal as entitlement to service connection for a right arm disorder. However, the Veteran has complained of problems with the right shoulder and right arm during the appeal, including in his January 2010 VA examination for compensation purposes. The examiner diagnosed right shoulder bursitis and tendinitis, while noting that x-rays showed arthritis. The scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, including reference to a specific body part or system or a description of symptoms, as well as the other information of record. Brokowski v. Shinseki, 23 Vet. App. 79 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, this issue on appeal has been recharacterized as stated on the first page of this decision to encompass all currently diagnosed right arm or right shoulder disorders. Additionally, the Board notes that the AOJ previously denied service connection for right shoulder bursitis in June 1992, and denied requests to reopen in May 1995 and June 1997. Therefore, the question of whether the prior denials were final, and whether new and material evidence has been received to reopen the finally denied claim, must be addressed by the Board as a threshold issue prior to de novo review. See Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). As discussed below, the Board finds that the evidence of record is sufficient to reopen the previously denied claim. The Veteran's Virtual VA file (a highly secured paperless storage system) currently does not include any pertinent records that are not also in the paper claims file. Any further development or adjudication should take into account this paperless file. The issues of entitlement to service connection for a neck disorder and a right shoulder or arm disorder, to include as secondary to the service-connected left shoulder disability; and, entitlement to a rating in excess of 20 percent for the left shoulder disability, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if any action is required on his behalf. FINDINGS OF FACT 1. Service connection for a right shoulder disorder was last previously denied in a June 1997 determination by the RO; the Veteran was notified of the determination and his rights to appeal, but he did not appeal and no new and material evidence was received within one year of that determination. 2. Evidence received since the last final denial of service connection for a right shoulder disorder in June 1997 includes information that was not previously considered and which relates to an unestablished fact necessary to substantiate the claim, the absence of which was the basis of the previous denial. CONCLUSION OF LAW The June 1997 RO denial of service connection for right shoulder bursitis became final, and new and material evidence has been received to reopen the previously denied claim. 38 U.S.C.A. §§ 5108, 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(a)&(b), 20.302, 20.1103 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012); see also Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006) (concerning duties for claims to reopen). In light of the Board's favorable decision in reopening the claim of service connection for right shoulder bursitis, the claim to reopen is substantiated. Therefore, no further action is necessary to satisfy the VCAA in this regard. Where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also Wakeford, 8 Vet. App. at 239-40. However, new and material received prior to the expiration of the appeal period will be considered as having been filed with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In other words, where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. Therefore, VA must evaluate submissions received and determine whether they contain new evidence relevant to a pending claim. Id.; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). For the purpose of determining whether new and material evidence has been received, all evidence received is generally presumed credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). For claims to reopen that are received on or after August 29, 2001, new evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In determining whether new and material evidence has been received, there is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade, 24 Vet. App. at 117. VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should consider whether the evidence could reasonably substantiate the claim were the claim to be reopened. Id. at 118. Moreover, the Veteran need not present evidence as to each element that was a specified basis for the last disallowance, but merely new and material evidence as to at least one of the bases of the prior disallowance. Id. at 120. The Veteran initially sought service connection for a right shoulder disorder, specifically bursitis, in January 1992. The RO denied the claim in a June 1992 rating decision based on a finding of no current diagnosis of bursitis, and the Veteran was notified of his appellate rights at that time. The RO also denied an increased rating for the service-connected left shoulder bursitis at that time. In November 1992, the Veteran requested that the RO reevaluate his claim of bursitis in both shoulders, reporting VA treatment from November 1992 forward. The RO obtained VA treatment records dated from 1992 to 1993. In a February 1993 rating decision, the RO denied an increased rating for left shoulder bursitis, but it did not address the Veteran's contentions as to the right shoulder. In January 1995, the Veteran requested to reopen his claim for an "increased disability rating" for bursitis in both shoulders, reporting treatment in 1992 and 1994. In a February 1995 letter, the RO notified the Veteran that it needed further evidence as to his claim for service connection for the right shoulder, and that no benefits would be payable if information was not received within one year. Additional VA treatment records were obtained, and the Veteran was afforded a VA examination in February 1995. In a May 1995 rating decision, the RO again denied service connection for right shoulder bursitis, finding that new and material evidence had not been received. As the previous denial was based on lack of a current diagnosis, and the RO noted that the February 1995 VA examiner had diagnosed chronic subacromial bursitis of the right shoulder, the exact basis for the 1995 denial is unclear. However, given that the RO did not discuss any connection between the current disorder and service, it appears that this may have been the reason for the denial. The RO again denied service connection for right shoulder bursitis in the May 1995 rating decision, and the Veteran was informed of his appellate rights at that time. No argument or evidence was received concerning a right shoulder disorder within the following year. Therefore, the May 1995 rating decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012). The next information in the claims file concerning the right shoulder is a May 1997 statement from the Veteran requesting treatment for right shoulder pain, and a May 1997 application for vocational rehabilitation benefits based on bursitis of the shoulders. The RO notified the Veteran in a June 1997 letter that his claim for service connection for the right shoulder had been previously denied, and he must submit new and material evidence to reopen the claim. He was also notified of his right to appeal this determination at that time. The Veteran did not respond to this request or dispute this determination, and no evidence was received concerning the right shoulder within one year of its issuance. Therefore, the June 1997 determination by the RO also became final. 38 U.S.C.A. § 7105(c) (West 1991 & 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (1996 & 2012). In July 2009, the Veteran submitted a statement asserting that his service-connected left shoulder disability had worsened and was now affecting his neck and right arm. He subsequently described symptoms in the right shoulder, and right shoulder disorders including bursitis were diagnosed. This led to the current appeal. The Board notes the Veteran previously claimed that his right shoulder disorder was directly related to service, and he now claims that it is secondary to his service-connected left shoulder disability. In this regard, a new etiological theory of entitlement does not amount to a new claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 313 (2006) ("[A]lthough there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit or the same disability, they constitute the same claim."); see also Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd sub nom. Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005) (a separate theory of entitlement is not a new claim but, rather, is a different means to reach the same end of service connection). Nevertheless, a veteran's lay contentions and other evidence received may constitute new and material evidence under the facts and circumstances of a particular case. Here, the pertinent evidence of record at the time of the last final denial of service connection for a right shoulder disorder in June 1997 included service treatment records, VA treatment records dated through 1995, statements from the Veteran, and VA examinations dated in August 1988 and February 1995. Service treatment records showed treatment for the right shoulder in May 1979, as well as multiple instances of treatment for the left neck area. VA treatment records showed reports of pain and other symptoms in both shoulders. In August 1988, bilateral shoulder x-rays were normal. In February 1995, the Veteran was diagnosed with right shoulder bursitis with limitation of motion and arthritis, although x-rays were interpreted as normal with no arthritis or other pathology. He was also noted to have bilateral shoulder impingement in a March 1995 VA treatment record. The evidence received since the last prior denial in June 1997 includes VA treatment records dated from 1998 through 2010, as well as private records from Dr. Grant dated in 2009, and further statements from the Veteran as to the nature and severity of his right shoulder symptoms. Such evidence shows continued treatment for bilateral shoulder problems including increased pain and limitation of motion. The Veteran has asserted that his right shoulder disorder gradually worsened over the years due to overuse to compensate for his service-connected left shoulder disability. X-rays conducted in December 2007 showed hypertrophic changes of the right acromioclavicular joint. The Veteran was also provided a VA examination concerning his shoulders in January 2010, with an addendum report in February 2010. The examiner diagnosed right shoulder bursitis, tendinitis and also noted that x-rays of both shoulders showed arthritis. The examiner opined that any relationship between the right and left shoulder would be purely speculative. Considering the new evidence together with the prior evidence of record, and presuming it credible for the purposes of reopening, the Board finds that it relates to an unestablished element of the previously denied claim. Specifically, the evidence, including the lay assertions, suggests that a currently diagnosed right shoulder disorder (including bursitis) is related to service, or was caused or worsened by the service-connected left shoulder disability. As such, the evidence is new and material as to service connection for a right shoulder disorder, and the claim is reopened. 38 C.F.R. § 3.156(a). ORDER As new and material evidence has been received, the claim for service connection for a right shoulder disorder is reopened, and the appeal is granted to that extent. REMAND Further development is necessary for a fair adjudication of the merits of the Veteran's claim for service connection for a right shoulder disorder, as well as service connection for a neck disorder and an increased rating for the service-connected left shoulder disorder. Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With regard to the left shoulder, there is an indication of possibly outstanding records that may establish a higher level of disability than the last medical evidence of record. Specifically, the Veteran reported in July 2009 that he was being followed by private provider Dr. Grant and that he may have left shoulder surgery. The evidence includes records from Dr. Grant dated from June to September 2009, but no further records. Additionally, a November 2009 MRI of the left shoulder showed a full thickness tear of the rotator cuff, quite large, with retraction. The Veteran was referred for VA rehabilitation, with an appointment on November 19, 2009, but such records are not in the claims file. The Veteran complained of left shoulder pain with an intensity of 8 in a February 2010 VA treatment session, but there is no medical evidence of record dated since October 2010, over two years ago. The Board notes that the RO indicated that a search of VA's electronic system for treatment records showed no pertinent records since October 2010, and the Veteran's representative indicated in August 2011 that there was no missing medical evidence. Nevertheless, given the progressive nature of the Veteran's left shoulder disability over the years, and the indication that he may have been scheduled for left shoulder surgery and rehabilitation, the Board finds that additional efforts should be made to obtain any outstanding treatment records. Further, the Board finds that the evidence is too old to adequately evaluate the Veteran's left shoulder disorder, and, given the reports of pain suggesting an increase in disability since the January 2010, a new VA examination should be provided after obtaining all available treatment records. See Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Allday v. Brown, 7 Vet. App. 517, 526 (1995) (VA must provide a contemporaneous medical examination where the record does not adequately reveal the current state of the claimant's disability, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination). With respect to the right shoulder and the neck, the January 2010 VA examination and February 2010 addendum report are inadequate to fairly adjudicate the Veteran's service connection claims. As noted above, the examiner stated that a relationship between the Veteran's right and left shoulder disorders would be purely speculative. The examiner also opined that the Veteran's neck disorder or cervical spine condition is not likely related to his left shoulder, but more likely is a naturally occurring phenomenon. However, the examiner did not provide any explanation for these conclusions. Further, the reference to a relationship between the claimed disorders and the service-connected left shoulder disability does not adequately address both aspects of a claim for secondary service connection, including both causation and aggravation of the nonservice-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc). The Board further notes that, if the evidence does not establish entitlement to service connection on a secondary basis, VA must also consider whether service connection is warranted on another basis, to include direct or presumptive service connection. See Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. Cir. 1994). Concerning direct service connection, the Veteran's service treatment records show treatment for right shoulder complaints in May 1979. He was also treated for complaints concerning the neck on several occasions in March 1981, although they were generally noted to be related to lymph nodes or a viral infection. With regard to presumptive service connection, the Veteran's current diagnoses include arthritis of the cervical spine and right shoulder based on x-rays. Arthritis may be presumptively service-connected as a chronic disability if it is shown to have manifested to a degree of at least 10 percent within one year following separation from active duty service. See 38 C.F.R. §§ 3.307, 3.309. Once VA undertakes the effort to provide an examination for a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007). An opinion is considered adequate when it is based on consideration of the prior medical history and examinations and describes the disability in sufficient detail so that the Board's evaluation of the claimed disability is a fully informed one. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Therefore, the case must be remanded for a new VA examination and etiological opinions concerning the Veteran's claimed neck and right shoulder or right arm disorders, to include as secondary to the left shoulder disability. The Board notes that, for claims filed after October 10, 2006, as in this case, service connection may not be awarded based on aggravation of a nonservice-connected disability unless a pre-aggravation baseline level of disability has been established to allow a comparison to the current level of disability. See 38 C.F.R. § 3.310(b) (2012). The examiner should address all raised theories of service connection, and all pertinent lay and medical evidence should be considered. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify and outstanding treatment records pertaining to his left shoulder, right arm or shoulder, and neck disorders (to include any private records from Dr. Grant), and to complete the necessary release form for VA to obtain any non-VA records. After obtaining any necessary releases, request copies of any identified records, including any records from Dr. Grant dated from September 2009 forward, and any VA treatment records dated from October 2010 forward, as well as any VA rehabilitation records concerning the shoulders dated in 2009. If any outstanding, identified records cannot be obtained, the Veteran should be notified and allowed an opportunity to provide any such records. 2. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a VA examination to determine the current severity of his left shoulder disability, and the nature and etiology of any current neck and right shoulder or arm disorders. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the report. All necessary tests and studies should be conducted. The examiner is requested to respond to the following: (a) With regard to the left shoulder, the examiner should measure and record all subjective and objective symptomatology, to include any limitation of motion or ankylosis and any functional impairment. The examiner should also state whether there is additional limitation of motion due to weakened movement, excess fatigability, incoordination, pain, or flare-ups. To the extent possible, the examiner should express this opinion in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran's reports of symptomatology, a reason must be provided. (b) With respect to the right arm or shoulder: (i) Identify all currently diagnosed right arm or shoulder disabilities, based on appropriate testing and studies. (ii) State whether it is at least as likely as not that any currently diagnosed right arm or shoulder disability was caused by the Veteran's service-connected left shoulder disability. (iii) If not, is it at least as likely as not that any currently diagnosed right arm or shoulder disability was aggravated (meaning permanently worsened beyond its normal progression) by the Veteran's service-connected left shoulder disability? If aggravation is found, the examiner must identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the right arm or shoulder disorder by the service-connected left shoulder disability. (iv) If the above answers are negative, then is it at least as likely as not (i.e., a 50 percent or higher degree of probability) that any current right arm or shoulder disorder had its onset during service or is in any way related to the Veteran's active service? (v) Did any current arthritis of the right arm or shoulder at least as likely as not manifest to a degree of at least 10 percent within one year after active duty (by September 1982)? (c) With regard to a neck disorder: (i) Identify any currently diagnosed neck or cervical spine disorders, based on appropriate testing and studies. (ii) Is it at least as likely as not that the Veteran's current neck disorder was caused by his service-connected left shoulder disability? (iii) If not, is it at least as likely as not that the Veteran's current neck disorder was aggravated (meaning permanently worsened beyond its normal progression) by his service-connected left shoulder disability? If aggravation is found, the examiner must identify the baseline level of disability prior to the aggravation and determine what degree of additional impairment is attributable to aggravation of the neck disorder by the service-connected left shoulder disability. (iv) If the above are answered in the negative, is it at least as likely as not (i.e., a 50 percent or higher degree of probability) that any current neck disorder had its onset during service or is in any way related to the Veteran's active service? (v) Did any current arthritis of the cervical spine at least as likely as not manifest to a degree of at least 10 percent within one year after active duty (by September 1982)? The examiner must provide a complete rationale for any opinion offered. All evidence of record should be considered, including service records, VA and private medical evidence, and the Veteran's lay statements as to the onset and timing of his symptoms. The Veteran's statements cannot be rejected due solely to a lack of corroborating medical evidence. If the examiner is unable to provide any requested opinion without resort to speculation, he or she should explain why this is so and what, if any, additional evidence would be necessary to render an opinion. 3. The AOJ should review the examination and/or addendum report and ensure that the above questions have been answered, and that the report is otherwise adequate. If it is not, the file should be returned to the examiner for clarification as needed. 4. After completing any further development as may be indicated by any response received, readjudicate the claims based on all lay and medical evidence of record. If any benefit on appeal remains denied, issue a supplemental statement of the case to the Veteran and his representative, and allow an appropriate time for response. Thereafter, the case should be returned to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. All claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs